If the U.S. Government Won’t Act, Airbnb Will

While the White House rubber-stamps Benjamin Netanyahu’s every move, the online rental company is cracking down on Israel’s illegal settlements.

A road sign points towards an Airbnb apartment, located in the Esh Kodesh outpost, near the Jewish settlement of Shilo and the Palestinian village of Qusra in the West Bank on November 20, 2018. (MENAHEM KAHANA/AFP/Getty Images)

A decision by Airbnb last week to stop listing more than 100 rental properties in unlawful Israeli settlements in the occupied West Bank has sparked anger and accusations. But the short-term lodging service is well within its rights; it is merely showing leadership in meeting its international human rights responsibilities—an obligation that the U.S. government has abdicated.

The Israeli government has vowed retaliation against the company in Israel, where it has more than 20,000 hosts. An Israeli minister reportedly asked U.S. officials to consider imposing sanctions on Airbnb under rules passed in more than 20 U.S. states denying contracts to companies that refuse to operate in Israeli settlements.

The Simon Wiesenthal Center, a Los Angeles-based nongovernmental organization, called for a boycott of the company. The backlash in the United States reflects a shift over the last decade toward erasing the line between Israel and its settlements and the erosion of the official U.S. policy viewing settlements as “an obstacle to peace.”

Airbnb is correct to bar settlement properties from its site as a first step in implementing a new policy prohibiting listings that, in its words, contribute to “existing human suffering.” Judged by that standard, Israeli settlements in the West Bank present an overwhelming case for ceasing business activity. There is a consensus among legal scholars that there are other occupied territories, such as Western Sahara and Northern Cyprus. Airbnb should scrutinize the effect of its business operations on human rights listings there, too, and take necessary action. But it makes sense for it to begin in a place where the seemingly innocuous business of listing rental properties contributes to serious violations of human rights and the laws of war.

First, settlements are unlawful, and the Israeli officials responsible for transferring Israeli civilians into the West Bank are committing a war crime under the Rome Statute of the International Criminal Court. An occupying power holds the land in stewardship. In the West Bank, Israel has carved out large swaths of land as Israeli-only areas, separating them from the rest of the West Bank by walls and fences and de facto annexing them to Israel. Settlements are a primary reason why Israel has held Palestinian territory for more than a half-century, ruling over 5 million Palestinians, who are denied basic democratic rights.

Second, settlements contribute to serious human rights abuses, including discrimination. The Israeli authorities discriminate against Palestinians in favor of settlers. They provide settlers, and in many cases settlement businesses, with land, water infrastructure, resources, and financial incentives to encourage the growth of settlements. They confiscate Palestinian land, forcibly displace Palestinians, restrict their freedom of movement, and limit their access to water and electricity. Of the state land they have allocated, more than 99 percent is for Israeli use, while the authorities have allocated less than 1 percent to Palestinians.

This systematic legal and procedural segregation bleeds into every aspect of life: which road people are allowed to use, the amount of water they are allocated, the law that applies to them, the type of court that will try them, and the sentence they receive if convicted. Such overt discrimination would be an outrage anywhere. But it is a double outrage in the occupied West Bank, because the Israeli authorities privilege settlers who are there unlawfully over the Palestinians whom the Israeli authorities are required to protect under the international law of occupation.

Third, businesses operating in or with the settlements cannot avoid contributing to these international law violations, because business activity supports settlements and takes place under conditions of inherent discrimination. The rental profits from Airbnb make the settlements more economically viable and help pay the costs of the settlers living there. Even if Airbnb and their hosts wanted to open settlement rentals to Palestinian guests from the West Bank, they would lack the power to rescind the military order barring Palestinians from the area where the homes are located.

They cannot remove the fence, built to protect the settlement, that blocks Palestinian children from reaching their high school. They cannot give back the land that the Israeli military unlawfully seized from Palestinians. At least 15 of the Airbnb rentals in the settlements are on land that the Israeli authorities acknowledge is privately owned by Palestinians but has been handed over to settlers, who built homes on it and are renting them out via Airbnb.

One such landowner is Awni Shaaeb, a naturalized U.S. citizen and veteran of the U.S. military who lives in the Palestinian village of Ein Yabrud. According to a Human Rights Watch report, settlers seized his land, with the backing of the Israeli military. Now he can’t even pay to stay on that land as an Airbnb guest, let alone develop the land himself, because Israeli military law bars Palestinian ID-holders from entering settlements, even as Israelis and other U.S. citizens in the West Bank may enter the settlement freely. That’s why Airbnb activity in settlements—like all business activity in settlements—takes place under conditions of inherent discrimination.

The United Nations Guiding Principles on Business and Human Rights require companies to avoid contributing to serious abuses of international human rights or humanitarian law. In the case of Israeli settlements, the only way to do that is to cease operating there. Though Airbnb has decided to stop contributing to the abusive settlement project, it will still provide services to Israelis by continuing to list thousands of rental properties inside Israel.

In fact, Airbnb highlights Tel Aviv as one of only 23 featured cities around the world that it specially recommends to guests, together with Paris, New York, Tokyo, and Buenos Aires—making it difficult to argue the company is acting out of an anti-Israel bias, as the Israeli government alleges.

Airbnb will need to determine how to apply its policy elsewhere, as well, determining the facts in each case and taking the appropriate action. For example, Morocco, too, has unlawfully transferred settlers to the occupied Western Sahara region, although Moroccan settlers live among Sahrawis, and no law prevents a Sahrawi from booking a stay in a Moroccan-owned Airbnb. It is difficult to know whether an Airbnb host is a settler or a Sahrawi, a factor Airbnb will need to take into account.

Until last week, Airbnb limited its human rights assessment to compliance with local laws and especially U.S. law. Consequently, it didn’t list properties in Russian-occupied Crimea, because U.S. and European Union sanctions prevented it from doing so. It has also banned discrimination by American and European hosts, because U.S. and EU law require that, but not by hosts elsewhere in the world.

But simply relying on local laws to uphold human rights protections is not enough, as the West Bank example shows. The United States, where Airbnb is headquartered, not only doesn’t prohibit business activity in settlements, but a number of U.S. jurisdictions actually try to punish companies and individuals that refuse to do business in settlements. For example, laws in Arizona, New Jersey, Florida, and Illinois require recipients of state contracts to certify that they don’t boycott Israeli settlements, refusing to invest in those that do and even creating “blacklists” of companies that refuse to operate in settlements.

The United States provides military and diplomatic backing for the Israeli settlement project, including $3 billion in military aid annually, some of which is used to enforce the roadblocks and protect Israeli settlements in the West Bank. Washington has also blocked any binding U.N. action against West Bank settlements, meaning that international sanctions are unlikely to stop companies from operating there.

Unlike its rival Booking.com—which refuses to pull out of Israeli settlements, arguing that it doesn’t buy or sell rooms and therefore is not supporting or maintaining the existence of settlements—Airbnb could now become a model for other companies to apply universal standards of human rights, even where local law falls short. In the occupied West Bank, Airbnb made the right call.

Sari Bashi is a Robina Foundation visiting human rights fellow at Yale Law School and a former researcher at Human Rights Watch. Twitter: @saribashi

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